Pages

Tuesday, June 26, 2012

(Note: I started this post with the intention of writing a more substantive engagement with Maitzen’s article. However, as I was beginning to write the more substantive portions, I discovered an excellent seriesofposts on this very article, with comments and responses from Steve himself, over on Bill Vallicella’s blog. Since the participants over there are far more knowledgeable and perceptive than I could ever hope to be, I recommend checking it out. Although the existence of this series led me to contemplate scrapping my post in its entirety, I had already put some work into it and so decided to post it in abbreviated form. It’s just an explanation of Maitzen’s argument. Perhaps some people will find it of value. But advance apologies for it not being as engaged as is typical on this blog)

The question “why is there something/anything rather than nothing at all?” is supposedly among the most profound questions we can ask. But is it really that profound? Steve Maitzen thinks not and he offers a pretty interesting argument in support of his contention. This post is dedicated to its explication.

The post is divided into two sections. The first sets out some of the dialectical context since it is important for understanding the implications that Maitzen draws from his argument. The second sets out the argument itself. Unlike some of his other work, Maitzen doesn’t offer a formal statement of his case so I’ve taken the liberty of trying to reconstruct one on the basis of what I read. As noted, I’ve held off on providing a more critical engagement with the argument due to the existence of the seriesonBill Vallicella’s blog.

1. The Dialectical Context
Many people find the existence of a universe full of stuff, or, rather, the existence of anything to be extremely puzzling. After all, most of the stuff in the universe seems contingent and contingent things need to be explained. I exist, but I might not have if my parents had never met. Likewise, the solar system exists, but if there wasn’t enough matter floating around to condense into the sun and the planets then it might not have existed too. This contingency seems to stretch all the way back to the big bang. So it seems like there must be some explanation for the totality of the contingent things in the universe.

What’s more, the existence of a world with nothing in it (what some call the “Null World”) seems more straightforward than the existence of a world with stuff in it. A Null World would be perfectly simple, perfectly symmetrical, and completely non-arbitrary. It seems far less puzzling than the complex, non-symmetrical and seemingly arbitrary universe we live in right now. Indeed, it seems far less puzzling than any other possible universe we could imagine. So when it comes to the explanation of the universe, it seems like we have ask: why would anything (this universe, another universe, a multiverse, whatever) exist instead of nothing?

This question — dubbed the Primordial Existential Question (PEQ) by Adolf Grunbaum — has occupied the minds of several great thinkers, among them Leibniz, Wittgenstein and, more recently, Parfit. To be sure, the question needs to be carefully construed. It is not really asking why anything at all exists. Most are agreed that logical and metaphysical necessities have to exist. Rather, it is asking why contingent, concrete things exist, like the physical and material things we come across in everyday life. Thus, the PEQ should probably be formulated in this manner:

Primordial Existential Question (PEQ): Why are there any contingent concrete things rather no contingent concrete things?

Even formulated in this more careful and constrained fashion, the PEQ is thought to be unanswerable for the naturalist and atheist. The reason being that naturalistic explanations tend to presuppose the existence of natural things like quarks and muon and leptons and so forth. But such presuppositions are ruled out when we’re trying to explain how those entities came into existence in the first place. It seems like something immaterial, non-natural and perhaps divine needs to be posited to explain the totality of contingent things.

Against this dialectical backdrop, Maitzen offers his two cents. He thinks that far from being the most profound and naturalistically unanswerable question we can ask, the PEQ is, in fact, a pseudo-question. In any form in which it is typically posed it is indeed unanswerable, not just by naturalists but by anyone. This is because it uses logically inapt terms that necessarily lead to absurd answers. And whenever it is reformulated to remove those terms, it ends up being in principle answerable by naturalism and thus far from the insuperable hurdle it is thought to be.

Maitzen’s Claim: The PEQ is not a problem for naturalists because: (a) in any of its traditional forms it is an ill-posed, pseudo-question; and (b) whenever properly reformulated it is in principle answerable by naturalists.

Let’s look at how Maitzen supports the two parts of this claim.

2. The Dummy Sortal Argument
Maitzen’s argument is actually surprisingly easy to state. It contends that the PEQ is a pseudo-question because its primary referent (anything/everything) is — brace yourself — a dummy sortal. A dummy sortal is a linguistic term that has the grammatical look and feel of a noun, but none of the associated noun-like logical properties. That is to say, it is a term that appears to refer to some actually existent entity (or grouping of entities), but really doesn’t. Consequently, it is impossible to know what the PEQ is actually asking us to explain. When the PEQ is reformulated so as to remove all dummy sortals, it becomes much more tractable, and naturalism-friendly.

The argument is perhaps best made by way of an analogy, one that Maitzen himself supplies. Consider another existential question, albeit not the primordial one:

Numerical Existential Question NEQ: How many things are actually in existence?

How does one go about answering this question? The answer seems straightforward: identify all the “things” and count them up. That might take a lot of time, perhaps more time than we have, but that’s a logistical problem not a philosophical one. Right?

Wrong. Consider an example:

The Pen Analogy: Suppose you hold one capped ballpoint pen in your hand. Now ask yourself: how many things are you holding? Is it one thing (a capped ballpoint pen) or two things (the cap and the pen)? For that matter is it three things (the cap, the ink tube and the casing) or four things (the cap, the ink tube, the casing, and the metal nib)? Or is it even more? Should we could each and every atom or quark in the pen as a separate “thing”? Where do the boundaries lie between one “thing” and another “thing”?

So “things” are not so simple after all. Even with a simple, seemingly straightforward NEQ like this, the answer is philosophically elusive. In fact, it is unattainable and this is for good reason. The term “thing” is a dummy sortal. It doesn’t provide criteria of identity governing the instances that fall under it. This is true even if one tries to solve the problem by claiming that the number of things in your hand is a countable or uncountable infinity (Maitzen discusses this possibility in some detail in the article, I shan’t repeat it here).

But why then does the NEQ seem so reasonable? The problem stems from a confusion of grammatical and logical function. “Thing” looks and functions grammatically as a noun, but it doesn’t have the appropriate noun-like logical properties. If I ask you “how many pens are you holding?”, you’ll be able to answer my question. That’s because “pen” has the criteria of identity we’d expect from a noun. “Thing” doesn’t. Nor does any analogue of “thing”, like “state of affairs”, “event”, “entity”, or “fact”. So any reformulation of the NEQ to include those terms rather than “thing” will face similar problems.
This leads to the larger point. It’s not just the NEQ that faces these intractable problems. Any question using a dummy sortal like “thing” will face those problems. That includes, most damningly, the PEQ, the supposedly profound question that has haunted many a philosophical nightmare.

That gives us the following argument against the PEQ:

(1) Any question that uses a dummy sortal like “thing”, “entity”, “event”, “state of affairs” and so forth is an ill-posed, unanswerable, pseudo-question. (See the Pen Analogy for support)

(2) The PEQ is typically formulated so as to include the dummy sortal “thing”.

(3) Therefore, the PEQ is an ill-posed, unanswerable, pseudo-question.

This supports the first part of Maitzen’s claim. What about the second? Things are little sketchier on that front. The basic idea seems to be that when you replace a dummy sortal like “thing”, with a proper one like “pen”, you end up with a question that is answerable. This is true not just in the case of an NEQ, but also in the case of an explanatory existential question. Thus, when you ask “why does this pen exist?”, a perfectly naturalistic answer is forthcoming. This is also true of other, more esoteric, questions of this sort, such as “why did the earth come into existence?”, “why did atoms come into existence?”, “where does mass come from?”, and so on. The presumption is that this trend will continue for any well-posed existential question.

This may seem like far too easy a dismissal of the PEQ. Surely Maitzen can’t be right? Surely all the philosophers who’ve dedicated themselves to the PEQ haven’t been chasing a phantom? Maitzen addresses several potential objections in the article and additional criticisms have been mounted (and responded to) over on Bill Vallicella’s blog. I recommend checking them out.

Sunday, June 24, 2012

There are certain books that everyone who is sceptical of theism should probably own. J.L. Mackie’s The Miracle of Theism is perhaps the classic all-in-one overview and critique of the arguments for the existence of God and is well worth a read, but it is dated by now and there are plenty of responses in the literature. Other more recent essential books would include Jordan Howard Sobel’s Logic and Theism, Graham Oppy’s Arguing about Gods, and one of my personal favourites, J.L. Schellenberg’s The Wisdom to Doubt. To that list I would now add Herman Philipse’s God in the Age of Science? A Critique of Religious Reason.

Philipse’s work deals with the existential challenges to theism in the wake of the rise of science. But unlike the more popular books that engage in this task, it does so in a rigorous, thoughtful and patiently philosophical manner. Pitched primarily as a response to the apologetics of Richard Swinburne, the book deals broadly with the factors that motivate contemporary natural theology and the critique thereof. The book is quite technical but it is well-written and generally easy to read. Anyone with an interest in the topic would be encouraged to give it a go.

One of the interesting structural features of the book is how Philipse organises the chapters around the strategic choices faced by the modern theist. As he sees it, these choices arrange themselves along the nodes and branches of a decision tree. At the first node, the believer faces a dilemma. They must ask themselves whether the proposition “God exists” has a truth value or not. That is to say, they must ask whether they are cognitivists or non-cognitivists about God’s existence. If they are cognitivists (as most are) they face a second dilemma: do they think their belief in God is justified on evidential or non-evidential grounds? If they opt for non-evidentialism, they end-up with Plantinga-esque reformed epistemology. If they opt for evidentialism, they face a further dilemma: is the justifying evidence to be drawn from revelational texts, such as the bible, or is it to be drawn from empirical observations of the natural world (Natural Theology)? This decision tree is illustrated below.

With these strategic choices in mind, Philipse divides his book into three main sections. The first section deals, relatively briefly, with non-cognitivism, reformed epistemology and revelation. Non-cognitivism is given the shortest possible shrift, with only a couple of lines dedicated to it in the introduction. This is probably ample since there are relatively few who take non-cognitivism seriously (Wittgenstein being one of the more famous). The possibility of revelation furnishing evidence sufficient to ground belief in God is critiqued and dismissed in a chapter, and Plantinga’s reformed epistemology is given two chapters. This leads to a general defence of the idea that natural theology is really the theist’s best shot. That leads to the second section of the book, which deals with the notion of “Theism as a Theory”, and the third section which deals with the various arguments that Swinburne offers in defence of the existence of God.

I’d be lying if I said I’ve read all of it, but based on what I have read I can heartily recommend this book. Everything I’ve read so far has been illuminating and, in many instances, has encouraged me to think about the arguments in a new way. The chapters on Plantinga, while brief, provided an excellent overview of the theory and as solid a defence of the exclusivism objection to Plantinga’s warrant model of belief as I’ve come across. Likewise, the various chapters on theism as an explanatory theory were excellent and to the point. I particularly liked the chapter dealing with the role of analogy and metaphor in the formulation of the God hypothesis, something I’ve tried to think about myself in the past but not in as careful and rigorous a manner.

There’s lots to chew over in this book, and no doubt plenty to disagree with, but the arguments are clear and their contemplation and dissection is surely one of the joys of philosophy.

Despite his theistic commitments, Dougherty’s article takes a skeptical look at skeptical theism, which is probably the most popular contemporary response to the evidential problem of evil. Highlighting a neglected part of the dialectic between atheistic proponents of the evidential argument (like William Rowe and Bruce Russell) and defenders of skeptical theism (like Stephen Wykstra), Dougherty argues that the main analogy used to support skeptical theism — the parent analogy — is seriously flawed.

This post will try to exposit Dougherty’s critique. It is split into three parts. The first discusses the evidential argument and the skeptical theist response. The second looks at the parent analogy and the challenges posed to it by Rowe and Russell. The third part looks at Dougherty’s critique and its implications.

1. The Evidential Argument and Skeptical Theism
The evidential argument from evil holds that the existence of (many) gratuitous evils, though not conclusive proof against the existence of God, certainly raises the probability of his non-existence. A gratuitous evil is defined as an evil which is not necessary for achieving some greater overriding good. The reasoning is that while God might permit evils to occur if they were necessary for achieving a greater good, he would not permit evils to occur if no such necessity were present. Thus, gratuitous evils, if they exist, provide evidence against the existence of God.

But do gratuitous evils actually exist? This is where the evidential argument runs into a spot of bother. To support the existence of gratuitous evil, proponents of the evidential argument must make inferences from cases of seemingly gratuitous evil to cases of actually gratuitous evil. That is, they must infer that if a situation appears to them to be a particular way, then it probably is really that way.

This is an inference that skeptical theists challenge. As Wykstra famously argued, the inference from what seems to be the case with respect to some particular fact to what actually is the case with respect to that fact, is only allowed when we could reasonably expect to have access to evidence that establishes facts of that sort. In other words, Wykstra argues that the key inference in the evidential argument is subject to a condition of reasonable epistemic access (CORNEA for short). He formulates this condition as follows:

CORNEA: On the basis of cognized situation s, human H is entitled to claim ”It appears that p” only if it is reasonable for H to believe that, given her cognitive faculties and the use she has made of them, if p were not the case, s would likely be different than it is in some way discernible by her (from Wykstra 1984, quoted on pg. 2 of Dougherty’s article).

Wykstra then argues that CORNEA is not met in the case of seemingly gratuitous evils:

(1) In order for the evidential argument from evil to succeed, the inference from the existence of seemingly gratuitous evils to the existence of actually gratuitous evils must be reasonable.

(2) The inference from what seems to be the case to what is actually the case is only reasonable if CORNEA is met.

(3) CORNEA is not met in the case of gratuitous evils, i.e. if God exists we could not reasonably expect to have epistemic access to the kinds of goods which might justify his permitting the existence of evil.

(4) Therefore, the evidential argument from evil fails.

The notion of CORNEA is not, in itself, particularly troublesome. So the key to this argument is premise (3), the claim that CORNEA fails in the case of gratuitous evils. Wykstra (and others) defend this by using the parent analogy. We turn to that next.

2. The Parent Analogy and its Discontents
The parent analogy works as follows. Sometimes parents allow their children to suffer in ways that ultimately serve the children’s greater good. For instance, they allow their infant children to undergo rounds of vaccinations that can be painful, but are ultimately beneficial (despite what deniers might say). Furthermore, sometimes, due to the age and cognitive limitations of the infant child, the parent cannot disclose to them the reasons that justify their suffering. So, from the perspective of the infant, there does not seem to be any reason for their suffering. But that does not imply that no such reason exists. Thus, CORNEA is not (always) met in the case of infant suffering, due to the cognitive disparity between parent and child.

But, so the defenders of skeptical theism argue, the cognitive disparity between God and human beings is analogous to the cognitive disparity between a parent and an infant child. Thus, just as CORNEA is not met in the case of infant suffering, so too is it not met in the case of gratuitous evil. God may have his reasons for allowing seemingly gratuitous evil to occur and we would have no reasonable expectation of knowing what they were because of our cognitive limitations.

That gives us the following argument in support of premise (3):

(5) Parents are sometimes justified in allowing infant suffering (e.g. suffering in order to undergo vaccination) because this suffering ultimately serves the infant’s greater good.

(6) But CORNEA is not always met in the case of infant suffering due to the cognitive disparity between parents and children.

(7) The relationship and cognitive disparity between God and human beings is analogous to the relationship and cognitive disparity between parents and children, in all important respects.

(3) Therefore (probably), CORNEA is not met in the case of gratuitous evils.

Premise (5) seems relatively uncontroversial here so the key to this particular argument lies in premises (6) and (7).

Let’s look at premise (6) first. As critics point out, this premise rightly states that CORNEA is not always met in cases of infant suffering. But this implies that it can be met in at least some such cases. In particular, as Rowe argues, it would likely be met whenever a loving parent had the ability to explain to the child why they had to undergo some temporary suffering. Consider, for example, the case of a four year-old child whose parents had given consent to undergo painful medical treatment (say, chemotherapy). Although there is a cognitive disparity between the parents and the child, the child has some capacity for understanding and, taking advantage of this, the parents would obviously try to explain to them why they had to undergo the painful treatment. Any loving parent would do this. So it is at least possible for CORNEA to be met in these cases.

The possibility of CORNEA being met in at least some cases of infant suffering has a knock on effect on the plausibility of premise (7). If God is a like loving parent, and if God is omniscient and omnipotent, surely he would try to explain to us why there was so much apparently gratuitous evil in the world? Indeed, he could have achieved this relatively easily: by endowing us with cognitive capacities sufficient to grasp the evil-justifying goods that he allows.

As Dougherty points out, this reasoning applies a fortiori to cases of apparently gratuitous human suffering. Why? Because it is the apparent lack of some justifying greater good that amplifies the degree of human suffering. If we thought there was going to be some ultimate payoff for our suffering, we would probably be more stoic about things, but if we are epistemically closed off from such justifying reasons, our torment is augmented.

In effect, then, we have a counter-analogy (and counterargument) which defeats Wykstra’s parent-child analogy.

(8) A loving parent would explain to their child, if they had the ability to do so the reasons that justify the child’s undergoing some temporary suffering in order to secure a greater good.

(9) The relationship between God and humanity is like that between a loving parent with the ability to explain justifying goods and a child who had to undergo some temporary suffering in order to secure a greater good (because God is omnibenevolent and omnipotent and because the seeming gratuitousness of human suffering amplifies that suffering).

(10) Therefore, if God exists, God would make known to humans the reasons that justify the existence of seemingly gratuitous evils.

(11) Therefore, CORNEA is met in the case of gratuitous evil.

Responding to this argument, Wykstra offers an extended defence of the parent analogy. We’ll take a look at that, as well as Dougherty’s response to it, next.

3. Dougherty on Wykstra’s Defence of the Parent Analogy
Wykstra tries to defend the parent analogy by drawing a distinction between a morally deep (or obscure) universe and a morally transparent one. A morally deep universe is one in which evil-justifying goods are hard to discover for beings like us. This view of the universe is encapsulated in something Dougherty calls the Obscurity thesis:

Obscurity: If the world is made by an omnipotent, omniscient God, then it is highly likely that if evil is permitted, most of the goods for the sake of which it is permitted will be obscure to humans (p. 4)

This is to be contrasted with a morally transparent universe, which is one in which evil-justifying goods are easily discoverable by beings like us. This is encapsulated in something Dougherty calls the Transparency thesis (he actually calls it the Strong Transparency thesis but he never formulates a weak version so I’ve dropped that qualification):

Transparency: If the world is made by an omnipotent, omniscient God, then it is highly likely that if evil is permitted, the goods for the sake of which it is permitted will usually be transparent to humans.

The key question for Wykstra then becomes: if theism is true, which thesis is more likely? Obscurity or Transparency? Wykstra, unsurprisingly, favours obscurity (though he doesn’t name it as such). And he supports this by way of an extended version of the parent analogy.

The extended version argues that, “given what we actually know about our cognitive limitations” (the wording is Wykstra’s and is significant) it is highly unlikely that God-purposed goods would be transparent to us. This can be seen if we consider the analogous case of parent-purposed goods. According to Wykstra, the transparency of parent-purposed goods to a child depends on the intelligence, ability and goodness of the parent. As those three qualities go up, the more likely it is that the parent will carefully plan for the child’s welfare in the distant future (e.g. post-college and so forth). But, again according to Wykstra, the more the parent-purposed goods lie in the distant future of the child, the less likely it is that they will be transparent to the child.

This reasoning applies a fortiori to God since he has maximal quantities of intelligence, ability and goodness. His evil-justifying goods will probably be realised on a timescale that humans cannot appreciate and hence they are highly unlikely to be transparent. That gives us this rather complex argument in support of premise (3):

(12) If, assuming theism and given what we know about our cognitive limitations, the universe is more likely to be obscure than transparent, then CORNEA is not met in cases of gratuitous evil.

(13) The universe is more likely to be obscure on theism, given what we know about our cognitive limitations.

(13.1) As a parent’s intelligence, ability and goodness increases, the more likely it is that the suffering-justifying goods for which they act lie in the distant future.

(13.2) The more temporally distant are those suffering-justifying goods, the less transparent they will be to the child who is forced to suffer for their attainment.

(13.3) The relationship between God and humanity is like that between a parent with high intelligence, ability and goodness, and a child (more so because God possesses maximal goodness, intelligence and ability).

(3) Therefore, CORNEA is not met in cases of gratuitous evils.

Dougherty identifies two serious flaws in this argument. The first is in the formulation of premise (12). Wykstra deliberately relativises his argument to what we know about our cognitive limitations. This, in many ways, is what allows him to reach the conclusion that he does. But the whole point of the Rowe/Russell critique was that, given theism, we wouldn’t expect to have such cognitive limitations in the first place. If God really cared about us, like a loving parent cares about their child, he wouldn’t have given us those limitations. So to relativise the argument in this way is to miss the point of critique.

(14) The argument cannot be relativised to our current cognitive limitations because we wouldn’t expect to have those limitations if theism was true.

The second flaw lies in the revised version of the parent analogy, particularly in the appeal it makes to temporally-distant parent-purposed goods. As Dougherty points out, the temporal distance between the suffering/evil and the good for which it is necessary is irrelevant from the perspective of transparency. Whether the goods accrue in the distant future, or not, doesn’t necessarily make them obscure. Furthermore, it is the very qualities of God that allow him to plan for us on a cosmic scale (omnipotence etc.) that also make it more likely that he would make this a morally transparent universe.

(15) Temporal distance is irrelevant to transparency: the very traits that make it more likely for someone to plan for future goods make it more likely that they would make those future goods transparent.

So extended version of the parent-analogy is seriously flawed.

4. Conclusion
That brings us to the end of Dougherty’s critique. To recap, skeptical theism is the preeminent modern response to the evidential problem of evil. The parent analogy is the preeminent (indeed, only) defence of skeptical theism. According to this analogy, we have no reason to expect epistemic access to evil-justifying goods because: (a) the cognitive disparity between humans and God is akin to that between parents and children; and (b) parents sometimes inflict suffering upon their children for good reason, but those reasons are not accessible to the child.

This analogy has been challenged by Rowe, Russell and, now, Dougherty. According to these critics, the analogy fails because it ignores the fact that a loving parent with the ability to explain suffering-justifying reasons to their children would indeed explain those reasons to their chld. God is more like a loving parent with the ability to explain than like a loving parent without that ability. This holds despite Wykstra’s attempts to defend the parent analogy.

This conclusion has significant implications for the skeptical theism debate. As Dougherty notes, many critics of that doctrine focus on its super-structural features. In particular, they focus on the effect that the underlying skeptical principles may have on our other beliefs. I have pursued this kind of criticism myself in the past. But the parent analogy is the foundation of the whole doctrine. If those foundations are fundamentally flawed, then the super-structural problems are beside the point: skeptical theism doesn’t even get off the ground.

Friday, June 15, 2012

I have written a number of posts about the ethics of same-sex marriage and same-sex relations. Mainly looking at the work of John Corvino, but with one other post on the impeded-function argument. Anyway, here are links to all the posts I have published on this topic.

Thursday, June 14, 2012

This is the third part in my series of posts on the definitional objection to same-sex marriage. The series is working off John Corvino’s contribution to the book Debating Same-sex Marriage. Corvino is an ethical philosopher working out of Wayne State University. In this book he takes on the conservative writer and defender of traditional marriage, Maggie Gallagher, in a point-counterpoint debate.

The definitional objection to same-sex marriage might be better termed the ontological objection since it focuses on what marriage essentially is. Most important from the perspective of those who would defend the argument is the notion that whatever marriage essentially is, it is essentially not a same-sex union. This conclusion is defended in a variety of ways. In part one, we discussed the Argument from Tradition, which does what you would expect. In part two, we discussed the Definitional Argument, which looks at the normative weight of definitions. Both were found to be flawed.

One of the conclusions we reached in part two was that, despite some countervailing considerations, the labels which we apply to states of affairs do not normally carry much normative weight. Thus, it is difficult for a purely definitional argument to force the conclusion that same-sex marriage is impermissible. To reach that kind of conclusion one must look into the actual states of affairs themselves and determine whether they are intrinsically or instrumentally valuable, and then work back to the conclusion that the definitional label we apply to those states of affairs ought not to be expanded to cover structurally distinct states of affairs.

The argument we’re going to look at today — the New Natural Law Argument — tries to follow that pattern. It offers an account of the ontology of marriage; it attaches special normative significance to that ontology; and it then uses this to exclude the possibility (and permissibility) of same-sex “marriage”.

1. The Conjugal View of Marriage
Under the old natural law, normative value was attached to natural function (note: I’m not entirely sure that this is correct, I suspect Aquinas apologists will tell me he had a more nuanced view). Accordingly, if the natural function of X was to do Y, then any activity that frustrated or impeded X in doing Y was prima facie wrong. This kind of principle could easily be used as the basis for an argument opposing same-sex marriage, indeed it could be used to oppose same-sex relations of any kind. I have covered the problems associated with such arguments before.

New natural law — the moral theory associated with the likes of John Finnis and Robert P. George — takes a slightly different view of things. According to this view, there is a set of basic human goods, the promotion and honouring of which is prima facie good. These basic goods are plural, irreducible and self-evident. To give an example, Finnis claims that knowledge is a basic self-evident good. Why is it self-evidently good? Because it would be perverse, inconsistent and self-defeating to deny its goodness: someone who claimed that it was bad to know P would have to know P in the first place before they could deny its goodness. Following similar though slightly less persuasive reasoning, Finnis identifies a list of other basic goods including friendship, play, life and religion (understood in the secularised sense of “asking the big questions about life, the universe and everything”).

Tellingly, Finnis has recently added a new basic good to his list: the marital good. The marital good is again basic, irreducible and self-evident. It is achieved through a particular kind of comprehensive union between a male and a female. Corvino does a pretty good job of summarising this view so I’ll hand things over to him:

As a comprehensive union, marriage unites the partners along multiple levels, which reinforce each other. On the mental/volitional level, it requires a loving, permanent, exclusive commitment between the spouses. On the physical level, it requires that the spouses unite biologically in reproductive-type acts. In such acts the male and the female become “literally, not metaphorically, one organism.” [Footnote omitted] (pg. 35)

This comprehensive-union view is sometimes referred to by proponents as the “Conjugal View” of marriage. And although there is often talk of achieving multi-level union between the partners, it is clear that (ongoing) engagement in reproductive-type acts is the essential characteristic of this type of union. After all, it would be possible for a same-sex couple to commit to one another on the mental/volitional level. Likewise, it would be possible for them to engage in sexual acts that allow them to achieve some form of bodily union. It is merely the fact that they cannot engage in reproductive-type acts that excludes them from the category of marriage. Furthermore, it is these acts that make marriage the basic good that it is: without them other types of good might be achieved (e.g. friendship, play), but they will not be the marital good.

That gives us the following argument against same-sex marriage:

(1) The marital union is a basic good: it is a comprehensive multi-level union between a man and a woman, involving ongoing reproductive type acts.

Now this argument doesn’t claim that same-sex relations are impermissible, or that they cannot be accorded some kind of legal and social recognition — additional argumentation would be needed for that — rather, this argument claims that same-sex unions should not be afforded the same type of legal and social recognition as marital ones.

2. The Sterility Objection
The standard objection to the New Natural Law Argument is the sterility objection. I like to look on this as a challenge to the supposed basicality and goodness of the conjugal view of marriage (though not necessarily to the idea of a marital good). It works off a counterexample which runs follows: imagine a sterile heterosexual couple (i.e. a couple whose sexual acts cannot result in conception). Clearly, such a couple cannot engage in reproductive-type acts. But sterile couples can be married. So the conjugal view of marriage must be wrong.

To put this more formally:

(4) According to the conjugal view, if a couple cannot engage in reproductive type acts, they cannot be married.

(5) Sterile couples cannot engage in reproductive-type acts.

(6) Therefore, according to the conjugal view, sterile couples cannot get married.

(7) But sterile couples can get married.

(8) Therefore, the conjugal view must be wrong: reproductive-type acts are not essential to marriage.

For some reason, I always think the plausible response to this argument — for the proponent of the natural law view — is just to bite the bullet and accept that sterile couples cannot be “married”. The reason I think this is plausible is that it seems to comport well with the views of some natural lawyers — particularly Finnis — who object to other non-reproductive sexual acts like masturbation, oral sex, anal sex and so forth. But for some reason they tend not to take this view. Obviously, they find the suggestion that sterile couples cannot get married to be far too objectionable.

So how do they respond? Well, the preference seems to be to challenge premise (5) by arguing that, contrary to what we might first think, sterile couples can indeed engage in reproductive type acts. The use of the term “type” is key here. Using cutesy analogies — such as: it’s still baseball even if you don’t win — such respondents will point out that a particular act token can fall within the boundaries of a general act type, even if that particular token does not realise or fulfil the end usually associated with that act type.

Corvino quotes the following example of this response from the work of Girgis, George and Anderson:

When Einstein and Bohr discussed a physics problem, they coordinated intellectually for an intellectual good, truth. And the intellectual union they enjoyed was real, whether or not its ultimate target (in this case, a theoretical solution) was reached — assuming, as we safely can, that both Einstein and Bohr were honestly seeking truth…
…by extension, bodily union involves mutual coordination toward a bodily good — which is realized only through coitus. And this union occurs even when conception, the bodily good toward which sexual intercourse as a biological function is oriented, does not occur.

We can formalise the reasoning here as an argument from analogy, which directly attacks premise (5):

(9) Two scientists coordinating intellectually so as to obtain the truth can successfully engage in the act-type “pursuing truth” even if the truth is not ultimately attained.

(10) The case of a sterile couple coordinating their bodies so as to achieve sexual union is similar to that of the two scientists in all important respects.

(11) Therefore, a sterile couple can engage in reproductive type acts, even if reproduction is not ultimately attained.

The problem with this formalisation is that it’s a fudge. One has to paper over many important differences between the two scenarios to make it sound even vaguely persuasive. As Corvino points out, it may be true that Einstein and Bohr are effectively engaging in the act type “pursuing truth” (i.e. they are coordinating on an intellectual good) even if truth is not obtained, but that’s only because they are honestly intending to seek a goal that simply does not occur. Perhaps it does not occur because of their cognitive limitations, or because others have conspired against them. Whatever the reason, it is their honest pursuit of it that allows us to say they actually engaged in that act type. But this throws into immediate relief some significant differences in the case of the sterile couple. If the couple know that they are sterile — e.g. if the woman has had her uterus removed due to cancer — then there’s no way that they can honestly pursue the goal of reproduction. And so it would seem to follow that they cannot perform reproductive type acts.

To put this formally (structured as a defence of (5))

(12) If an act type T is characterised by activity that is oriented towards some end E, then a person can only be said to engage in T if they engage in activities that can result in E, and they knowingly and honestly intend to attain E.

(13) The reproductive act is characterised by coordinated bodily activity between two persons that is oriented toward conception.

The principle motivating this argument (premise (12)) is somewhat ad hoc, drafted as it was purely in light of Corvino’s reaction to the analogy proffered by Girgis, George and Anderson. But it seems reasonable enough. To say that mental states like knowledge and honesty can be part of the success conditions for the performance of certain act types seems normal enough.

3. The Paraplegic Case
Proponents of conjugal view might respond by rejecting the honest and knowing success conditions. In other words, they could argue that an act is of the reproductive type as long as: (a) there is uncontracepted sexual intercourse (with ejaculation maybe being necessary); and (b) irrespective of the intentions and knowledge of the parties engaging in the act. Furthermore, they could argue that this is enough to make the act intrinsically morally valuable.

This, however, seems absurd to me: the mental states of the parties are clearly relevant to determining the moral status of the sexual act. What if the act was non-consensual? Surely then it would be prima facie wrong? Indeed, even proponents of the conjugal view recognise something like this point when they identify mental/volitional union as being part and parcel of marital unions.

But even if they could overcome this problem, unpalatable consequences would follow. As Corvino points out, proponents of the view would then have to accept that certain paraplegics could not marry. Unlike sterile persons, paraplegics who lack the use of their reproductive organs, cannot even engage in reproductive type acts. Thus, they cannot satisfy the essential condition of the conjugal view. But surely it is absurd to deny that they cannot be allowed to marry, or that their marriages should no longer be legally recognised? So thinks Corvino at any rate.

Although Corvino thinks that proponents of the conjugal view are logically forced to this conclusion, he thinks they will try to avoid it. In particular, he suggests that they might appeal to the value of privacy or autonomy in rejecting state interference in paraplegic “marriages”. But if they did so it would be a spectacular concession. Proponents of same-sex marriage could use similar reasoning to support non-interference in same-sex “marriages”.

4. Conclusion
Okay, that brings us to the end of this series. To sum up, the definitional objection to same-sex marriage holds that same-sex marriage is, in effect, an oxymoron because it contradicts the essence of marriage. Three forms of the definitional objection have been considered here: the Argument from Tradition (AFT), the Definitional Argument (DA), and the New Natural Law Argument (NNLA).

The AFT was deemed to be flawed because it assigned unwarranted normative weight to traditional institutions, even in its most sophisticated Hayekian form. The DA was deemed to be flawed because it assigned unwarranted normative weight to the labels we assign to certain states of affairs. And the NNLA was deemed to be flawed because it assigned unwarranted normative weight to reproductive type acts.

Tuesday, June 12, 2012

This is the second part of brief series of posts on the definitional objection to same-sex marriage. The series is working off the recently-published book Debating Same-Sex Marriage. The book is part of Oxford University Press’s point-counterpoint series and features contributions from John Corvino and Maggie Gallagher. Corvino is an ethical philosopher from Wayne State University; Gallagher is a conservative commenter and co-founder of the National Organization for Marriage. No prizes for guessing their respective points of view.

This series is focusing on a sub-section of Corvino’s contribution to the book, the sub-section that discusses the Definitional Objection. As noted in part one, this might be better termed the Ontological Objection since it relates to what marriage essentially is. The objection itself comes in three different forms. The first of those — the Argument from Tradition (AFT) — was covered in part one. This part looks at the second form, the Definitional Argument (DA).

The DA, unlike the AFT, actually does have something to do with how terms are defined for linguistic usage. However, it does so in a way that ultimately links definitions with the supposed ontology of marriage. This post breaks the discussion of the DA down into three sections. First, it presents the simplest, category-error or impossibility, form of the DA. Second, it tries to refine this version of DA and consider Corvino’s responses. Third, it closes by looking at at his consideration of the ‘civil unions’ vs. ‘marriage’ issue.

1. The Impossibility version of the DA
Perhaps the most obvious way in which to interpret the DA is as a kind of impossibility or category-error claim. In other words, to construe proponents of the DA as claiming that it is an outright error to ascribe the label “marriage” to same-sex unions. To call such unions marriages is akin to referring to the existence of a “square ball” or calling a chicken a “duck”. Indeed, these are not just fanciful examples that I cooked up, they have been used by opponents of same-sex marriage. For example, here’s Maggie Gallagher (Corvino’s main foil in this book) on the chicken/duck example:

Politicians can pass a bill saying a chicken is a duck and that doesn’t make it true. Truth matters.

That’s all well and good, but what kind of argument can be mustered up in defence of such a category-error claim? Here’s an initial suggestion:

(1) “Marriage” is exclusively, necessarily and essentially defined as “a union between one man and one woman”.

(2) Same-sex unions are not unions between one man and one woman.

(3) Therefore, same sex unions cannot be called “marriages”.

Just a couple of quick words about premise (1) here. In saying that marriage is “exclusively” defined as a union between one man and one woman, I’m not suggesting that other things cannot be added to the definition. For instance, it may be that marriage is more-properly defined as a “loving union between one man and one woman”. Indeed, there could well be some opponents of same-sex marriage that feel lovingness is an essential part of marriage. That’s fine, I have no wish to exclude those kinds of additional features. The exclusivity clause that I added to the premise was merely intended to exclude the application of the “marriage” label to unions that are not between one man and one woman. Presumably, that’s the kind of exclusivity that proponents of the DA want since that’s what supports their category error claim.

So much for the clarification, what about the argument itself? Well, the obvious thing to note is that it has very little normative power. It merely says that we cannot call same-sex unions “marriages”, but it does not deny the reality of morally valuable same-sex relationships. This would give us some space to create separate labels that can then be used to afford legal recognition and protection to such unions. This is possibility that has been adopted in some jurisdictions and its merits will be considered in the final section of this post.

Acknowledging that possibility, there is still the fact that the exclusive use of the label has some normative significance. In fact, that’s why proponents of the DA make that argument in the first place. So we need to probe a little deeper and consider why labels can have such normative weight and what implications this has for same-sex marriage.

2. The Normative Weight of Labels
An easy response to the DA would be to argue that labels are arbitrary. Whether we call a table a “table” or a “schmable” is of no great matter. It is purely a question of aesthetic, not moral, preference. Given this arbitrary nature, it does not much matter whether we choose to extend the label of “marriage” to cover same-sex unions or not. What’s all the fuss about really? The more sophisticated proponents of the DA have a response to this.

Corvino singles out one such respondent for special consideration. His name is Robert H. Knight and he is a conservative writer. Knight notes that labels are not purely arbitrary. If we apply a label to an entity or state of affairs that we care about, then we would be well-advised not to extend its application in such a way that it applies to qualitatively different entities or states of affairs. To emphasise this point, Knight uses the example of the Maui Onion:

”Maui Onion”: The Maui onion is a particular breed of sweet onion that is only grown on the island of Maui. It has certain properties that make it more desirable (in certain contexts) than other onions. In particular, it is sweeter and less pungent than the typical onion. In other words, the label “Maui Onion” is used to pick out a distinctive kind of entity that we might care about (depending on the flavours we are looking for). Thus, if the label “Maui Onion” were extended to cover all onions grown in Hawaii, that would be wrong (or, at a minimum, unfortunate).

The example is superficially pleasing, and one can sort of imagine how it might be used to make an analogical argument against same-sex “marriage” (I won’t set out that analogical argument here). But the details of this are questionable. Corvino detects at least three flaws.

First, the pleasingness of the example is largely attributable to the fact that extending the “Maui Onion” label to cover all onions frustrates reasonable human purposes. If you or I go into a store to buy an onion, and we ask specifically for a “Maui Onion”, but because of definitional changes we end-up getting an ordinary, pungent non-sweet onion, we would be justifiably disappointed. We wanted to cook a dish with a particular matrix of flavours, but we are no longer able to do this because of the mix-up. Indeed, we would probably have to invent a new label to pick out the particular onion we wanted. The problem is that no equivalent frustration of reasonable purposes takes place in the marital context. Same-sex partners will know who they are getting married to and will understand the type of union they are entering into, they won’t be deceived as in the case of the Maui Onion. Nor will heterosexual couples suddenly be frustrated in their desire to marry people of the opposite sex.

Second, in considering the extension of the label to all onions grown in Hawaii, the example ignores hard cases. Consider, the following variation (Corvino’s):

Kauai Onion: Suppose that scientists/horticulturalists manage to create an onion that is genetically identical to the Maui Onion. This onion is then taken to the island of Kauai and grown in very similar conditions to those found on Maui. The end result is an onion that tastes and smells the same as a Maui Onion. Does this new onion deserve the label “Maui Onion”?

This case is much more difficult than the original one. True; there are some differences between the original Maui onions and the new Kauai ones, but they seem relatively trivial (really only a change in geographical location). Since what we care about is taste and aroma, and since the new onion is practically identical in these respects, it would seem churlish to refuse to apply the label to it. But then why couldn’t the same be true of the label “marriage”? Couldn’t it be that same-sex unions share a sufficient number of structural similarities with heterosexual unions such that denying the label “marriage” to those unions would be like denying the label “Maui Onion” to the genetically identical ones grown on Kauai?

Opponents will no doubt balk at this suggestion, arguing that is misses what is morally important about marriage. But this objection itself misses the point. The DA is supposed to derive its strength from the power of existing definitions and labes, it’s not supposed to get us into a debate about the morally desirable features of marriage. It’s a conceptual, category-error style argument, not a purely moral one. We can have those arguments about the morally desirable features of marriage if we like — indeed, we will have them — but they will be structurally different from the DA.

This brings us to the third and last of Corvino’s responses to the Maui Onion example. It is this: proponents of the DA sometimes confuse a conceptual-definitional objection to same-sex marriage with a consequentialist one. In other words, critics often oppose the application of the “marriage” label to same-sex unions on the grounds that this would have disastrous consequences for traditional marriages (e.g. by distracting from the child-centred focus of marriage). But in doing this they step outside the bounds of a purely definitional argument. Corvino is willing to debate them on the consequences of recognising same-sex marriages, but only after showing that the DA itself doesn't work.

3. Civil Unions vs. Marriages
Many countries and (some) US states have introduced legislation that provides for the legal recognition of same-sex “civil unions” but not same-sex “marriages”. Sometimes, these legal frameworks are said to introduce same-sex marriage in all but name. Assuming that the two institutions are legally and socially equivalent, what would a proponent of same-sex marriage have to complain about? Corvino ends his discussion of the DA with a couple of quick comments about this (with particular references to the experiences in the state of Vermont).

The first is that, in many instances, civil unions are not legally and socially equivalent to marriages. Oftentimes, partners in civil unions are denied access to the full range of legal rights and responsibilities associated with marriage. Other times, even if equality is provided for in law, the difference in labels leads to differences in social treatment. Such as when a hospital administrator, either through ignorance or prejudice, does not allow full access rights for civil partners. So it’s not clear that difference in labels is truly meaningless in this context.

The second comment is that legal and social equivalence would probably only be sustainable if people didn’t pay too much attention to the difference in labels. In other words, it would be sustainable only if people effectively read “spouse” every time they saw the term “civil partner”, and viewed civil partnerships under the same conceptual frame as they viewed married couples. But if that is what people would have to do to sustain equivalence, then it would probably just make more sense to change the labels so that civil unions were called “marriages” (or maybe vice versa). This, he suggests, is effectively what happened in states like Vermont and Connecticut, which experimented with “civil unions” for a while before eventually granting marriage licences to same-sex couples.

4. Conclusion
To sum up, the DA tries to object to same-sex marriages on the grounds that it is wrong — tantamount to a category error — to apply the label “marriage” to same sex unions. But for the argument to work, there has to be some reason for thinking that definitional labels are normatively significant, not arbitrary. Although there may be occasional reasons for thinking this (e.g. as in the Maui Onion case), those reasons do not seem to apply to the same-sex marriage case. Furthermore, we must be careful to separate the DA from arguments that focus on the morally desirable features of interpersonal relationships, and moral consequences of recognising same-sex marriage. The DA is about the moral weight of our labels and definitions, not about the moral structure of the world outside those labels (at least, that’s how I read Corvino’s criticisms here).

That’s not to say that the moral structure of the external world is unimportant in this debate — of course it is — but it will be treated separately. Indeed, we’ll start treating it in the next post by looking at the New Natural Law Argument against same-sex marriage. This argument proposes that the marital union is essentially constituted by ongoing reproductive type acts between spouses, and that this essential constitution is morally valuable. We’ll see what we can make of this the next day.

Monday, June 11, 2012

Obama’s recent public declaration in support of same-sex marriage was significant. And although I’m not sure that it will carry much weight during the election campaign (I suspect economic issues will dominate), I still think it’s worth knowing about the kinds of arguments that are slung back-and-forth between the opposing sides of this debate. In this light, I welcome John Corvino and Maggie Gallagher’s recently-published book Debating Same-Sex Marriage.

Corvino is an excellent and, may I say, witty, ethical philosopher (I actually chuckled at several points whilst reading his contribution to this book). I have covered his work before on this blog. Gallagher is far less cuddly figure, being the co-founder of the National Organization for Marriage, an organisation that campaigns vigorously against same-sex marriage. Their book is part of the point-counterpoint series published by Oxford University Press. Other entries in this series (such as Abortion: Three Perspectives) have been good, if a little patchy. And although I’ve only read Corvino’s contribution to this particular one, I think it’s probably worth reading. (Note: the book gets vicious reviews on Amazon on the basis of Gallagher's contributions)

Anyway, having been reading it all afternoon, I’ve decided to exert myself and write up a little series of posts based on one portion of Corvino’s main chapter. This is the portion dealing with the so-called Definitional Objection to same-sex marriage. In its naivest form, this objection holds that the label “marriage” is only properly applied to a union between one man and one woman. A union between two men, or two women (or indeed unions of three or more persons) cannot, obviously, be of this form. Consequently, it is wrong to even think about debating the propriety of same-sex “marriage”.

As I say, this is the simplest version of the Definitional Objection. The objection itself comes in several forms, only one of which has much of anything to do with how we define our terms. In fact, it might be best to call it the Ontological Objection, since it really has to do with what marriage essentially is.

In his discussion, Corvino looks at three versions of the objection. The first is based on the Argument from Tradition, the second is actually based on definitions (the Definitional Argument), and the third is based on concepts from new natural law (the New Natural Law Argument). He then closes with his own reflections on the definitional debate. In this series, I will cover the four parts of Corvino’s discussion, dedicating one blog post to each. I start by looking at the Argument from Tradition (AFT).

1. The Basic Version of the AFT
The AFT is not particularly persuasive, nor is it (to my knowledge) widely employed by those academics and public figures inclined to oppose same-sex marriage. Still, for all I know, it might be widely employed in “water cooler” or “down-the-local-pub” debates about this issue and thus worth addressing for this reason. I’m not sure if this is the reason why Corvino covers it, but he does so and I’m not going to question his reasons for it any further here.

The simplest way to put the AFT is as follows:

(1) Marriage has always only been a union between one man and one woman.

(3) Therefore, marriage should continue to only be a union between one man and one woman.

Obviously, this argument is a nonsense: the conclusion does not follow from the premises. I haven’t even tried to hide the fact: readers will no doubt have noticed the discrepancy in the number of the premises, jumping as they do straight from a premise (1) to the conclusion (3). Why was that? Well, because the argument obviously lacks a crucial normative bridging premise. That is, a principle that allows you to actually infer the conclusion from the premises.

What might that principle look like? Here’s a suggestion:

(2) If a particular social institution has always been structured in a particular way, it ought to continue being structured in that way.

This would certainly get us to the conclusion (3). But it would do so at some cost since it looks to be obviously false. There are many institutions — slavery and female suppression to name but two — that had rich cultural traditions but which were not therefore ethically desirable. It is difficult to deny the claim that heritage and tradition are not always ethically sound. So we’ll have to look elsewhere for some principled support for the AFT.

We’ll do that in a moment. For the time being let us bend over backwards in deference to the AFT and assume that (2) is correct. Even then the AFT has problems. Why so? Because premise (1) — the empirical premise — is demonstrably false. It is simply not the case that marriage has always been a union between one man and one woman. Ethnographic evidence controverts this claim. Corvino runs through numerous examples in the text, highlighting in particular how polygamy (or, more correctly, polygyny) has been the preferred practice in many societies at one time or another, and how same sex unions have been accepted in a handful of cultures (the Nuer tribe are specifically cited as they recognised (recognise?) a form of female-female union).

Corvino suggests that some same-sex marriage opponents might try to object to this ethnographic evidence of same-sex unions. They might do so on the grounds that, even in the examples cited in the text, the partners to the alleged same-sex unions assume traditional gender roles. Such a response would be problematic on two grounds. First, most contemporary Western cultures have moved away from endorsing those traditional gender roles. And second, even if they hadn’t, it’s not like opponents of gay marriage would suddenly be happy if gay couples adopted traditional gender roles in their unions. They don’t support the gender roles themselves; they support the particular sexual make-up of a monogamous heterosexual marriage. Thus, this kind of response, if anyone was minded to give it, would be inadequate.

2. The Hayekian AFT
It looks then, to all intents and purposes, like the AFT is a resounding failure. Can nothing at all be said in its favour? Well, ignoring the factual problems that were just cited, Corvino does identify one slightly more sophisticated version of the AFT, one that actually attempts to motivate the principle underlying premise (2). This is the Hayekian argument in favour of traditional institutions (which might also be called a Burkean argument, though there might be some differences in the formulation if this were the case). And although this argument would still run afoul of the arguments just offered against premise (1), it is worth briefly considering here.

Hayek was most famous for his work in economics, particularly his work defending the merits free markets over centrally-planned ones. The essence of his critique of centrally-planned economies lay in his observation about the information-gathering powering of the market. As Hayek saw it, the kinds of information that one needs in order to make sensible decisions about what kinds of goods to produce and what kinds of goods to buy is bewilderingly complex. No central planner could effectively collate all that information, analyse i,t and then use it to make informed decisions about what kinds of goods and services ought to be produced in an economy, and the price at which they should be sold. It is much better to leave that kind of information-gathering to dispersed private individuals, who can assess locally-available fragments of the relevant information and use this to make their own rational decisions about production and consumption. Thanks to some feedback and self-organisation, this information can then be collated into the prices that are charged on the market. This can be done without the direct knowledge or awareness of the particular individuals making up the market.

The upshot of this is that, for Hayek, prices on the free market are informationally-rich signals that we would be well-advised to follow when making our economic decisions. What’s more, this advice sticks even when we are not aware of all the information that underlies those signals. The claim of the proponent of the Hayekian AFT against same-sex marriage is going to be that something similar is true of traditional social institutions like marriage. In other words, like price signals, traditional social institutions embody lots of underlying information gathering and analysis. This means that these institutions could have strong underlying normative rationales that are simply not transparent to us right now. Consequently, we would be well-advised to respect them, even if we’re not quite sure why.

The analogy is troubling, to say the least. While Hayek had a decent enough argument to make about price signals, whether that carries over to cover all social institutions is another matter. Most mainstream economists recognise that there are situations in which the information-gathering power of the market fails (e.g. because important costs are excluded from individual economic decisions, as in a Tragedy of the Commons type of scenario). In those cases of market failure, we would not be well-advised to respect the market signals. The problems for the Hayekian AFT is that something like a market failure (call it a moral failure) could easily happen in the context of cultural transmission. Indeed, there are obvious examples of this: slavery was once a widespread social institution, transmitted down through the ages in a long unbroken chain, yet it is now recognised as being morally corrupt.

So we can’t simply accept, on faith, that traditions will get us closer to the moral truth. Proponents of the Hayekian argument will need to show why the case of marriage is special, and less likely to embody a moral failure like slavery. I suspect that they are unlikely to be able to do so. Indeed, I think there are probably good reasons to think that the mechanisms through which social institutions are formed do not “track the truth” of morality. Furthermore, even if this was the case, the Hayekian argument would not go far enough. As Corvino points out, to be successfully employed against same sex marriage, the argument would need to show not only that there are good reasons for respecting a particular institution (in this case heterosexual monogamous marriage), but that there are also reasons for not extending that institution (to cover homosexual marriages). This, to Corvino, would require an unwarranted faith in the wisdom of tradition.

In conclusion, the AFT does not seem to work. In its simplest form, it is factually inaccurate and lacks a sound normative principle. In its more sophisticated Hayekian form it still fails because it does not give reasons for thinking that Hayekian-style loyalty is warranted in the case of social institutions like marriage.

Wednesday, June 6, 2012

This is the second part in a brief series of posts on Matthew Kramer’s defence of the purgative rationale for the death penalty. The defence can be found in Kramer’s (largely impressive) book The Ethics of Capital Punishment. According to the purgative rationale, death is a justifiable punishment whenever it is needed to purge defiling evil from a moral community. Although the notions of “purgation” and “defiling evil” have religious connotations, Kramer thinks they can be embraced on strictly secular grounds.

The goal of this series is to try to reconstruct Kramer’s argument for the purgative rationale. This is not an easy task since Kramer, despite his lengthy analysis and attempted defence of the rationale, never takes the time out to present it in a valid logical form. This makes his discussion slightly infuriating and is something I’m trying to correct for in this series. I am, however, aware that my summary may fail to do justice to the 150 or so pages that Kramer dedicates to the topic in his book.

Nevertheless, I think most of the necessary groundwork was laid in part one and that I can now proceed to formulate what I take to be the purgative argument for capital punishment. Before I do that, I ask the reader to recall from part one the test that Kramer proposes for any successful defence of the death penalty. The test is as follows:

Kramer's Test: A principle or rationale for the death penalty is successful if and only if it specifies some morally acceptable/desirable end for which death is:

(a) the minimally effective means for securing that end (i.e. it is compatible with the Minimum Invasion Principle); and

(b) the maximally effective means for securing that end (i.e. it is compatible with the Humane Treatment Principle).

This test effectively demands that death be uniquely specified by the purgative rationale. As it happens Kramer thinks the purgative rationale does this.

Let’s now see why he believes this to be the case. The discussion below is divided into two parts (numbering continues from part one). The first presents the basic argument for the purgative rationale and highlights some of its important features. The second discusses some problems for this argument. This consists of my very preliminary thoughts, and I would be keen to receive comments that either elaborate or reject my concerns, add additional concerns, or, indeed, identify further supports for Kramer’s argument.

3. The Purgative Argument for Capital Punishment
What follows is my reconstruction of Kramer’s basic argument for the purgative rationale. For those who would like to see whether I’m being fair to him (and who have access to a copy of the book) the reconstruction is based on what Kramer says on pgs 186-187 and on pgs 226-230 (mainly the latter). Additionally, I have tried to take into consideration some of what Kramer says in response to his eleven “queries” about the rationale, but I can’t do justice to all of that. Luckily, several of those responses are tangential to the main argument.

The argument begins with the discussion of some paradigmatic cases of defiling evil. I presented these cases in part one. The cases (Richard’s case and Joseph’s case) involve people who carry out (in a culpable manner) depraved and inhumane acts against other human persons. These acts include torture, mutilation, rape and murder, and are typically accompanied by great sadistic pleasure and a sense of empowerment. Kramer’s argument is that people who engage in acts like this (i.e. people like Richard and Joseph) need to be killed in order to restore the moral standing of the communities in which they live. To quote from the man himself:

“…each of them has perpetrated grotesque iniquities that besmirch the moral standing of the community in which each of them respectively abides. Though there is not any collective responsibility for the original iniquities themselves (in the absence of any facts that would implicate people who were acting as public officials), there is collective responsibility for the continued existence of each of the perpetrators. Because there is collective responsibility of the latter kind, and because the continued existence of Richard or Joseph defiles any community which bears that responsibility, such a community is under a moral obligation to resort to capital punishment." (pgs 228-229)

We have here the bones of the argument. It works from a general principle about collective responsibilities, through some specific cases of defiling evil, to a conclusion that justifies the imposition of the death penalty. I think that gives us something along the following lines:

(1) If the moral order and standing of a community C (relative to humankind) has been besmirched or defiled, then C has a duty to do what is necessary to restore that moral order and standing (the Restoration Principle).

(2) In certain empirically plausible cases (such as Richard’s and Joseph’s) a person (S) can besmirch or defile the moral order and standing of the community in which they abide.

(3) Therefore, in those empirically plausible cases, C has a duty to do whatever is necessary to restore their moral order and standing.

(4) In these empirically plausible cases, the only thing that will restore the moral standing of C is the death of S (the Exclusivity Claim).

(5) Therefore, in empirically plausible cases, C has a duty to kill S in order to restore their moral order and standing.

Three general comments about this argument are appropriate here. First, one thing that might jump out at you is that, starting with premise (2), the argument specifically attempts to apply itself to empirically plausible cases. One might wonder whether this is necessary, since, from a philosophical perspective, sometimes all that matters is whether something is “in principle” justifiable or, conversely, “in principle” unjustifiable. This is true, but Kramer is very explicit about his desire to show that death is appropriate in empirically plausible cases. One can see his point: it would be a hollow victory indeed for the death penalty proponent if they could only show its in principle justification. Hence, the argument is explicitly formulated in such a way that it applies to empirically plausible cases.

Second, and following on from this, it is important to note that those empirically plausible cases will be few and far between. Again, this is something about which Kramer is quite explicit. He does not think that every murder, or every rape or every instance of serious violence will warrant the death penalty. Only those cases involving defilingly evil conduct will merit it. Kramer accepts that the category of defilingly evil conduct is one with a fuzzy boundary, but thinks that vague concepts of this sort are unavoidable in ethics. If one is concerned about borderline cases, one should err on the side of caution and avoid execution. But Kramer argues this does not refute the fact that there are some paradigmatic cases of defiling evil and, if his argument is successful, death would be warranted in those cases.

Third, although the argument presents a relatively strong conclusion — viz. the community has an obligation to execute in certain instances — Kramer argues that this will not always settle the matter since there could be overriding obligations not to implement the death penalty. For instance, in a non-democratic regime, or in a regime without procedural safeguards for defendants, the moral worthiness of death penalty might be overridden by the corruption of the system which administers it. In those cases, the obligation need not be met. But, once again, this does not refute the fact that in at least some systems such overriding concerns will not arise. The last chapter of Kramer’s book is entirely dedicated to addressing this point. I will not have time to cover it here.

With those three comments out of the way, we can proceed to evaluate the argument. As best I can tell, the argument is valid (I formulated it so I would say that) so the key question then is whether its premises are true. It is here that I have some concerns.

4. Some Concerns about the Purgative Argument
The lynchpins of the argument, for me, are premise (1) and premise (4). Premise (1) is a lynchpin because it is what gets the ball rolling. It states a general principle and this general principle claims that communities sometimes have the duty of moral restoration. Without this principle, the conclusion that the death penalty is sometimes obligatory could not be reached. Premise (4) is a lynchpin because it makes a strong claim about the exclusive necessity of the death penalty. Effectively, it says that the death is only thing that will allow a community to discharge its restorative obligation in certain instances.

I have some concerns about both premises. My concerns about premise (1) are perhaps not best labelled “concerns”. They are really more desires for further specification and clarity. My concerns about premise (4) are rather more deserving of the label. I’ll briefly discuss both here. As I said in the intro, I would be keen to hear from readers who have their own thoughts about Kramer’s argument.

Turning then to premise (1), I have three things I would like to know more about. The first is the nature of the duty in question. I’m willing to accept, despite the fact that people have argued at length over this, that communities (as collectives) can have responsibilities. But I think I’d like to know more about the kinds of act types and tokens that these responsibilities mandate. Much has been written about collective responsibility from a backward-looking blame-imposing perspective, but, to my knowledge at least, not so much has been said from a forward-looking liability-imposing perspective. Fortunately, Kramer does say something about the kinds of duties that we expect communities to discharge and how they vary over time. The diagram below depicts his view.

As he sees it, the community owes a duty of protection to its citizens at the time at which the acts of defiling evil takes place, but this duty does not imply that the community can be blamed for every act of defiling evil that takes place. This is because there might be overriding reasons for avoiding excessive surveillance of its citizens. Once a perpetrator of defiling evil has been arrested, the community owes them the duty of ensuring that they receive a fair trial, which includes non-frivolous appeals of any determination of guilt. And finally, once guilt has been determined, the community has the duty to do something with the perpetrator which, in this instance, means that they ought to kill the perpetrator. This specification of the duties is helpful but I think I would to see more on how the specific contents of the duties is determined at each stage. Some discussion of parallel cases, not involving crime and punishment might be helpful on this score. For example, what are the duties owed by a community in the case of a famine or natural disaster, and how do they vary over time?

A second clarification I would like to see relates to the concept of “restoration”. Now, admittedly, Kramer doesn’t use that term himself but I think it is implicit in what he has to say, and I would like to know exactly what restoration of moral order and moral standing consists in. Again, some consideration of parallel cases might be helpful here. Presumably, a natural disaster which leads to great suffering upsets the moral order of a community, but how exactly does one restore the order in this case? And would actual duties of restoration be owed?

Finally, another clarification I’d like to see relates to the objects of the obligation/duty in question. Is the collective duty owed in abstracta or is it owed to specific people, such as the citizens of the community itself. Kramer speaks of the community needing to restore its moral relationship with the rest of humanity, which suggests that the duty is owed to the entirety of humanity, but I think Kramer means this in an abstract sense. Why? Because Kramer excludes the possibility that the duty could be negated or waived by those to whom it is owed. He says that no one has the authority to vacate the death penalty (i.e. no one has the authority of clemency), because the duty is owed to all persons — past, present and future — in virtue of the properties (sentience, capacity to feel pain etc.) that make them morally significant. This suggests to me that it is an abstract duty, not owed to any person or group of persons, but rather owed in virtue of the existence of certain moral values. I find this unproblematic at the individual level but are there any reasons for thinking that things are different at the collective level? Can collectives owe duties in this abstract fashion? Maybe, but I’d like to see some discussion of the issue.

Turning then to premise (4) and the more serious concerns. One thing that’s clear is that this premise is designed to ensures that the purgative rationale passes the test I outlined earlier. Passing this test is crucial since it is the reason why all other rationales for the death penalty fail. Now, Kramer does offer some defence of this premise, but nothing particularly elaborate. This is odd given the burden that this premise bears.

Kramer’s defence, such as it is, consists in considering some alternative punishments and whether they would discharge the burden of restoration. At one point he considers whether a community could restore its standing by exiling or banishing the offender from the community. He argues that although this would create physical distance between the community and the offender, it would not create any normative/moral distance. And it is this normative distance which would be needed. More significantly, he argues that life in prison, in conditions of solitary confinement, would not suffice to restore moral standing. Why? Because it would require that significant resources be expended on the continued existence of the offender, which would fail to remove the moral taint from the community (and also, I presume, would amount to tacit toleration of the defilingly evil person, which again fails to create the requisite normative distance between the community and the morally corrupting individual).

Although it’s nice that Kramer discusses these two alternatives, by themselves they seem insufficient to defend premise (4). Surely there are other alternatives that need to be discussed and repudiated. For instance, at one point, Kramer suggests that those with mental illnesses might be excused/exempted from the death penalty, even when the illness arises after arrest. To me this raises the question: would a community not discharge its duty by artificially inducing a sufficiently serious mental illness? Kramer might respond that this would be inhumane and so would run foul of his test, but this is not obviously so: why is continued biological existence with impaired mental capacity worse than death. In any event, there might be other alternatives that are less obviously inhumane. For instance, selective memory erasure might remove the more noxious elements of an evildoer’s personality, thus restoring moral order but not resulting in death. Similarly, severe behavioural reprogramming might do the trick.

I’m sure replies might be conjured up to these examples. For one thing, they might be deemed empirically implausible and so not relevant to the argument Kramer presents. For another, the expenditure of resources they entail might be deemed too high a price to pay because it would be indicative of a toleration for moral evil, or something along these lines. The problem is that Kramer never discusses these possibilities and so, at least as I read it, one of the crucial premises of his argument is improperly defended.

5. Conclusion
That brings us to the end of this series. To recap, Kramer’s goal is to offer a novel defence of the death penalty, one that overcomes the deficiencies in the traditional rationales. This novel defence consists in the articulation of the purgative rationale for capital punishment. According to this rationale, a community has a duty to kill certain perpetrators of defiling evil in order to restore their moral order and standing.

The supposed virtue of the purgative rationale is that it overcomes the problems associated with the traditional views. These problems are twofold. First, that the traditional rationales do not respect the Minimum Invasion Principle, i.e. they do not show that death is the minimally effective means to some morally desirable end. And second, that the traditional rationales do not respect the Human Treatment Principle, i.e. they also provide support for inhumane and cruel punishments. By contrast, the purgative rationale exclusively picks out death as the only appropriate punishment.

Nevertheless, there are some reasons to be concerned about Kramer’s defence of this rationale. First, the moral principle which he uses to motivate his argument seems underspecified and unsupported. And second, his defence of the exclusivity claim seems incomplete because it fails to consider other alternative forms of punishment. Neither of these concerns is necessarily fatal to Kramer’s enterprise, but they do seem like hurdles to be overcome.